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March 2008 - Posts
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The Wrongful Convictions Tax Relief Act of 2007 would furnish certain tax benefits to exonerated prisoners without prior felony convictions. But for the vast majority of inmates released on grounds of innocence taxes are the least of their worries. Few have a right to any indemnity for their horrendous ordeal: Only 22 states, the District of Columbia and the federal government have laws providing for compensation. Society owes a huge debt to exonerees which it has failed even minimally to repay thus far.
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Roe is (barely) still standing. You can always stay off that wiretapped phone. But don't sit by while your heart valve explodes, your home loan balloons and Wall Street steals you blind.
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A healthy discussion about professional identity has emerged from the Carnegie Foundation's influential 2007 report on legal education. It states that preparation for practice should involve three "apprenticeships": cognitive, practical, and ethical-social. Wisely, the report recognizes that it would be both "illegitimate and ineffective" for law professors to seek to indoctrinate students with some preferred view of "justice." But it insists that ethics, morals and justice be addressed regularly.
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President George W. Bush invited judicial nominees awaiting Senate confirmation to a reception on Feb. 7 where he castigated the Senate for not approving them. If the White House would expend more time on identifying and nominating highly qualified consensus nominees by consulting and cooperating with senators to secure their confirmation and less time on ignoring senators, engaging in partisan bickering and mounting stunts, the White House, the Senate, the judiciary and the public would be better served.
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For the first time, DOJ's Office of Professional Responsibility has announced it is investigating an astounding failure of legal scholarship: how waterboarding, among the worst forms of torture, came to be deemed legal and authorized for use in CIA interrogations by DOJ's Office of Legal Counsel. President Bush's veto of a torture ban makes this inquiry all the more urgent. The investigation should help us better understand what the OLC has become, and what must be done to reclaim this great institution.
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Riegel v. Medtronic, the U.S. Supreme Court delved into the thorny issue of who is best positioned to reconcile often competing interests in protecting public safety with protecting the market for medical devices. The idea that a jury of lay people is better able to decide about the appropriate design and labeling of a complex medical device, rather than scores of FDA experts, defies logic. Absent federal pre-emption, companies could face verdicts dictating standards that differ in every state.
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Billie Holiday rightfully lamented "strange fruit" when lynchings were a horrific spectator sport. A vestige of this shameful period lingers: the periodic appearance of the hangman's noose. It is the blatant attempt to infuriate and humiliate by anonymously posting a noose that ignites public outrage. To halt this behavior, society must deprive the perpetrator of the attention he seeks. If such acts are greeted with a collective shrug of pity, the sick gratification of these criminals will be undermined.
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Our 44th president will inherit not only unprecedented economic and security challenges but also a broken federal appointments process. More than 200 high-level federal executive, regulatory and court vacancies threaten the government's proper functioning. The Constitution provides the answer: recess appointments. Throughout our history, recess appointments proved invaluable. No. 44 should boldly recess appoint. The Senate should be given one month to ratify or reject each wave of nominees.
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Recently, few issues have been debated more often and more vigorously than the use of torture - especially waterboarding - to extract information from suspected terrorists. But this is not the first time Americans have debated the issue. In the first third of the last century, police resort to torture was hotly disputed. One police interrogation manual from 1940 stated that torture should never be used because it does not produce the truth. How much progress have we made in the last two-thirds of a century?
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In 2002, the National Security Agency persuaded several telecommunications companies to assist them in eavesdropping on international phone calls and e-mails of Americans, claiming it was legal. U.S. citizens with evidence that they were monitored then sued some of the telecoms. As a result, President Bush recently urged Congress to pass legislation giving the telecoms immunity. But if the telecoms did not break the law, there's no need for an immunity provision.
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Unless the recent run of cases is a statistical anomaly, it seems clear that the U.S. Supreme Court favors the textualism advocated by Justice Antonin Scalia as its dominant mode of statutory interpretation, rather than looking to legislative history. This preference has its virtues, but experience shows that it is an insufficient method. Legislators may differ about the reasonable legislative purpose, but the judge's inference of their intention will do tolerable justice and serve democratic theory.
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Securities class actions are a powerful weapon. When brought by well-funded firms like Milberg Weiss, they are difficult for companies to defend against. The firm built a reputation, and a fortune, based on a corrupt system. We would be foolish to blame one firm and not take a hard look at the system itself. Here are some suggested improvements: Limit the times one person can be a class representative. Limit class representatives to true shareholders. Hold the lawyers accountable. Limit attorney fees.
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